Good afternoon.My name is Karen Musalo.I am resident scholar at the University of
California, Hastings College of the Law.For the past four years I served as founding director and principal
investigator of The Expedited Removal Study (“Study”) a nationwide scholarly
study of expedited removal.During the
past two years I have also served on two occasions as an expert consultant to
the Commission on International Religious Freedom on matters involving expedited
removal. I would like to thank you Mr. Chairman and members of the Subcommittee
for the opportunity to testify regarding expedited removal.

II.Background

Congress enacted the expedited
removal law as part of the 1996 Illegal Immigration Reform and Immigrant
Responsibility Act (IIRAIRA), and the new procedures were implemented in April
1997.Expedited removal permits the
summary return of persons[1] who are
inadmissible for fraud or misrepresentation[2] or for lack
of a valid or suitable travel document.[3]

At ports of entry, immigration
officers conduct initial examinations of all arriving individuals at primary
inspection, and route persons whose admissibility is in question to secondary
inspection, which is in a secure, closed area.During secondary inspection, persons deemed to be inadmissible for fraud
or lack of proper documents may be ordered removed without further process.The removal order becomes final upon a
supervisor’s approval, and bars reentry to the United States for five
years.The statute[4] permits the
withdrawal of an application for admission in the discretion of the Attorney
General, in which case the applicant may depart without being subject to the
five year bar on reentry.

Pursuant to the law, there are two
groups of persons subject to expedited removal who are to be provided with
additional procedural protections, rather than being immediately returned at
secondary inspection: (1) those who claim a legal right to reside in the United
States based on citizenship, permanent resident, asylee or refugee status, and
(2) those who express a fear of persecution or an intention to apply for
asylum.

Persons who claim lawful status are
to have such claims reviewed by an immigration judge.Persons who express a fear of return or a
desire to apply for asylum are to be referred to an interview with an asylum
officer (AO) during which it will be determined if they have a credible fear of
persecution.A “credible fear” of
persecution is established if “there is a significant possibility, taking into
account the credibility of the statements made by the alien in support of the
alien’s claim and such other facts as are known to the officer, that the alien
could establish eligibility for asylum under Section 208.”[5]

In order to assist in the
identification of persons who fear return or desire to apply for asylum,immigration officers are required to ask
three questions (referred to as the “three fear questions”) during secondary
inspection:(1) why did you leave your
home country or country of last residence?; (2) do you have a fear or concern
about being returned to your home country or removed from the U.S.?; and (3)
would you be harmed if you were returned to your home country?Interpreters are to be provided if necessary
for communication with the individual.[6]

Persons who express a fear of
return to their home country or an intent to apply for asylum, in response to
these questions or at any time during secondary inspection, are to be referred
to a credible fear interview.Among
those to be referred are persons who express fear or an intent to apply for
asylum through non-verbal acts.

Persons who establish a credible
fear of persecution at their interview with an asylum officer are permitted to
apply for asylum.Persons found not to
have a credible fear may request review by an IJ.There is no right to representation or to
have a consultant present at this review.[7]The statute precludes any further
administrative or judicial review [8] in claimed
status and credible fear cases, and persons who do not prevail before the
immigration judge are summarily removed from the United States.

The INA requires mandatory
detention, until removal, of all persons subject to expedited removal
proceedings.[9]A narrow form of parole is available, in
accordance with INA § 212(d)(5), if “the Attorney General determines, in the
exercise of discretion, that parole is required to meet a medical emergency or
is necessary for a legitimate law enforcement objective.”[10]Once a person establishes a credible fear of
persecution, he is no longer subject to expedited removal proceedings, but
rather to regular removal proceedings under INA § 240, and therefore, may be
eligible for parole under normal parole criteria.[11]The INS has stated that persons subject to
expedited removal who are determined to have a credible fear of persecution fall
under the INS’s low priority detention group, and that “it is INS policy to
favor release of aliens found to have a credible fear of persecution, provided
that they do not pose a risk of flight or danger to the community.”[12]

III.Concerns Regarding Expedited
Removal

Expedited removal represents one of
the most fundamental changes in immigration law and policy, because it gives
unprecedented authority to immigration inspectors to issue unreviewable orders
of removal.Before its enactment, every
person deemed inadmissible by an immigration officer at a port of entry had the
opportunity for a formal hearing before an immigration judge, and the right to
appeal the judge’s decision to the Board of Immigration Appeals (BIA) and the
federal courtsAsylum seekers were not
required to establish a credible fear in a screening process in order to be
permitted a full hearing on their claims.

At the time when Congress was
debating expedited removal, its critics contended that the process created an
unacceptable risk that bona ride refugees would be returned to situations of
persecution. It was feared that asylum seekers, who are often weary and
traumatized, would be unable to articulate their fear immediately upon arrival,
especially if such persons had suffered particularly humiliating forms of
persecution, such as rape or other forms of sexual torture.There were also concerns that immigration
officers might fail to comply with the requisite procedures — such as those
requiring interpretation where necessary, or referral upon the verbal or
non-verbal expression of fear — all of which could result in the summary removal
of a bona fide asylum seeker.Critics
also questioned whether the credible fear standard applied by asylum officers
would be applied too rigorously, screening out persons with legitimate claims
for asylum.

In addition to these concerns
focused on asylum seekers,opponents of
the process also criticized the fact that expedited removal gave immigration
officers the authority to make final decisions on admissibility, which
previously had only been made by immigration judges, and which were subject to
administrative and federal courtreview.This was seen as having
the potential to prejudice legitimate travelers to the United States, as well as
citizens and lawful permanent residents, who are entitled to only one tier of
review if denied admission by an immigration officer.

IV.The Expedited Removal Study

The Expedited Removal Study was
initiated in response to these, and other concerns regarding expedited removal,
and was designed to examine all components of the procedure.The Study’s objective was to determine
whether expedited removal met the dual congressional goals of preventing abuse
of the system, while ensuring that bona fide asylum seekers, individuals with
lawful status in the U.S., and other legitimate visitors (e.g. business visitors
or tourists) not be denied admission.

The Study’s intended methodology
contemplated cooperation with the Immigration and Naturalization Service (INS)
so that researchers could have adequate access to observe and properly evaluate
expedited removal procedures.Of special
interest to the Study was the area of secondary inspection, where immigration
officers make decisions regarding referral of asylum seekers to credible fear
interviews, admissibility of persons with claimed lawful status, and
admissibility of arriving aliens in general.

Unfortunately, the INS, which
initially welcomed the idea of a study that could provide critical information
to policymakers and the public,refused
to provide the requisite access to the process or its related data.Consequently, the Expedited Removal Study was
forced to modify it research strategy and concentrate on the collection of data
from attorneys and non-governmental organizations (NGOs) that represent persons
who have been subject to expedited removal.The Study has also utilized the Freedom of Information Act (FOIA) process
to obtain data from the INS and the Executive Office for Immigration Review
(EOIR).

The Expedited Removal Study has
issued four reports on the expedited removal process; the last of its reports,
issued in October 2000, was an evaluation of the General Accounting Office’s
research on expedited removal.In
general, the Expedited Removal Study has identified a number of issues of
substantial concern arising both from its analysis of statistical data, as well
as its investigation of the processing in individual cases.These issues give rise to the questionwhether bona fide asylum seekers, individuals
with lawful status in the U.S., and other legitimate visitors (e.g. business
visitors or tourists) are being improperly denied admission.

Select Case Studiesfrom The Expedited Removal Study

From April 1997 through October
1999,[13] almost
190,000[14] had been
subject to expedited removal, and if the trend from 1997 to 1999 is any
indication, the use of expedited removalmay be expected to increase.[15]In this time period, the clear majority of
persons removed under expedited removal — 99% — were removed at secondary
inspection without a referral to a credible fear interview or claimed status
review.The high percentage of cases
involving a removal at secondary inspection underscores the importance of
evaluating that stage of the proceeding.

The Expedited Removal Studies has
identified a number of cases which illustrate serious problems at secondary
inspection, ranging from the failure of immigration officersto comply with required procedures, to
affirmative misconduct on the part of officers.Because the INS has not permitted on-site observation, which would have
allowed the Study to engage in a comprehensive analysis of processing at
secondary inspection, it is not possible to conclude whether or not these
troubling cases are representative of expedited removal cases in general.The following case studies, which are
excerpted from the Study’s annual reports, provide examples of failures in the
expedited removal process.

Mr. A, a twenty-six year old
citizen of Algeria, was an active member of the Islamic Salvation Front (FIS), a
major opposition political party, in 1990-92.FIS was outlawed by the military government in 1992, and elections that
FIS was expected to win were canceled.[17]From 1993-94, Mr. A was employed as a
gardener for Benjadid Chadli, a former Algerian president.Early in 1994, while visiting his parents,
Mr. A was arbitrarily detained and tortured for several days while in police
custody.In late 1994, members of the
Armed Islamic Group (GIA), a militant anti-government Muslim organization, broke
into his family’s home, abducted him and sought his cooperation in a plot to
assassinate his employer.Mr. A quit his
job out of fear and fled to the home of a friend.Months later, Mr. A and his friend
encountered a group of GIA members who threatened their lives.After forcing them to a private area, the
group beat both men, shot Mr. A’s friend dead in front of him, and then again
demanded Mr. A’s cooperation with the assassination, saying it was his last
chance.

Mr. A fled to another city, where
he was working in 1996 when his brother was arrested at the airport as he was
attempting to leave the country to study abroad.Mr. A obtained a lawyer to help his brother,
who was charged with treason, convicted and sentenced to twenty years in
prison.Mr. A was arrested and released
by police at the courthouse where his brother’s hearing was taking place.In 1998, Mr. A’s family was again targeted by
the GIA when a group of rebels ransacked their home in search of Mr. A, then
fled after engaging in a gun battle with police.Later in 1998, Mr. A was again arbitrarily
arrested by Algerian security forces, detained and tortured over a fifteen day
period.[18]

After this event, in September
1998, Mr. A fled Algeria. He traveled to Bulgaria and then to southeast Asia
throughout 1999, eventually arriving in the U.S. at San Francisco International
Airport on a flight from Shanghai, China, on January 30, 2000.Mr. A was traveling on a false Spanish
passport which he disposed of after exiting the airplane.He approached an INS officer at primary
inspection and asked for asylum.

Mr. A was referred to secondary
inspection.He explained with his
limited English that he had destroyed his passport, which he reported appeared
to have upset the INS officers.Although
the regulations require interpretation under these circumstances,there was no interpreter at this point.Without interpretation Mr. A had difficulty
understanding what the officers said to him, but he believes that one of the
officers said, “Algerians go back to Algeria.”Mr. A was shackled hand and foot and held in a room together with an
Iraqi man who was also shackled.An INS
officer came into the room and asked Mr. A if he spoke English.Mr. A indicated that he did not, but a second
officer said that Mr. A did speak English but did not want to talk.Mr. A reported that the first INS officer
seemed very angry at him.

Mr. A reports that he was taken by
the first officer to a room where his handcuffs were removed.There was still no interpreter present.The INS officer told Mr. A to write down his
name, and began typing into a computer.With his limited English, Mr. A repeated that he wanted asylum.Pursuant to expedited removal procedures,
this should have resulted in a referral to a credible fear interview unless it
became apparent from follow-up questions that the reason for his fear was
totally unrelated to the refugee definition.Instead of being referred, the officer reportedly told him several times,
“[t]onight, you go back to China” (the country he had transited immediately
before his arrival in the United States).When Mr. A said he would be killed if he was returned to Algeria, the INS
officer said that he did not care.Mr. A
was upset and crying.When the officer
briefly left the room, Mr. A grabbed a coffee cup, broke it against the desk,
and stabbed himself in the abdomen, causing a deep wound.He then began slamming his head into the
table.INS officers came into the room
and restrained him.An incident report
prepared later that day by an INS supervisor states that the stabbing occurred
while the interviewing officer was out of the room to obtain a telephonic
interpreter.

Mr. A was taken to a hospital by
ambulance, where he received stitches in his stomach.After a few hours at the hospital, Mr. A was
brought back to the INS airport office for his secondary inspection
interview.Mr. A was exhausted and in
pain.At this point an interpreter was
brought in, and Mr. A was interviewed by a different INS officer in his native
Arabic.At the conclusion of the
interview, Mr. A stated that he would be harmed if he was returned to
Algeria.His case was referred to the
Asylum Office for a credible fear interview.Mr. A was returned to the hospital, where he was seen by psychiatric
emergency staff.[19]He spent the night at the airport, and was
taken the next morning to the INS office in San Francisco, then to Marin County
Jail.

Mr. A’s credible fear interview
took place February 14, 2000, in San Francisco.The interview, conducted in his native Arabic, lasted two hours and
twenty minutes.Mr. A was found to have
a credible fear of persecution on account of political opinion.After spending approximately five months in
detention he was released from custody, and was granted asylum in the summer of
2000.

Mr. C is a twenty-five year old
Egyptian citizen who worked in Egypt as an accountant and volunteered in a
Coptic Christian church as a bread baker in his spare time.He was active in the church and identifiable
as such in the neighborhood because he was in and out of the church on a regular
basis.His religion could also be easily
determined by his name.Mr. Cwas harassed and assaulted many times,
including one incident involving a serious beating.The State Department has documented
discrimination and other serious abuses of Christians in Egypt.[21]

Mr. C first came to the United
States in mid-1998 on a tourist visa.During this visit, Mr. C volunteered at a Coptic church as a baker and
worked at a restaurant for several months.In late 1998 he applied for and was granted an extension of his
authorized stay.When his extension
expired in mid-1999, Mr. C returned to Egypt.On his return, a Muslim group sought to extort money from him in the form
of an unofficial “tax.”Mr. C was told
that he either had to pay the tax or convert to Islam.Mr. C reported that the group had identified
him as a target because he had traveled to the U.S. and was assumed to have
money.

As a result of these threats, Mr. C
fled to the U.S. intending to seek asylum, arriving at a New York-area airport
in September 1999.Mr. C was carrying
his Egyptian passport with a valid tourist visa.He was referred to secondary inspection,
where he spent most of the next eight hours shackled to a bench.A search of his belongings turned up a Social
Security card, and Mr. C admitted to having previously worked in the U.S.
without permission.

During his interview with an INS
officer at secondary inspection,[22] Mr. C was
asked whether he feared return to Egypt.Mr. C reported that, as he attempted to explain the problems he faced
from Muslims, the INS officer interjected: “I am a Muslim.What is your problem with Muslims?”Mr. C was taken aback by the officer’s
statement.He said that he could explain
but was concerned about his government finding out about his claim to
asylum.According to Mr. C, the INS
officer then told him that the INS would contact the Egyptian government about
his case.Both of these statements by
the INS officer were highly inappropriate, and made Mr. C extremely anxious, and
he proceeded to respond to questions with neutral, careful answers, making sure
that he said nothing disparaging of the government or about Islam.Intimidated by the remarks of the INS
officer, Mr. C said that he was not seeking asylum.As a result, Mr. C was not referred to the
Asylum Office for a credible fear interview and was detained pending his
imminent removal from the United States.

While in detention, however, Mr. C
telephoned his sister in Egypt, and she informed him that the Muslim group had
been looking for him since he left. She
urged him not to return, saying that it was not safe for him in Egypt.Mr. C then contacted an INS officer at the
detention facility and explained that he was afraid to return to Egypt and
wished to seek asylum in the United States.Mr. C was referred for a credible fear interview and was subsequently
found to have a credible fear of persecution.In February 2000, after five months in detention, Mr. C was granted
asylum by an immigration judge.

Mr. A, an Ecuadoran businessman,
went into hiding after giving information to the police about a major crime in
Ecuador.On July 1, 1995,gold and jewelry worth twenty billion sucres
(five million U.S. dollars) was stolen from an office of the Instituto Ecuadoriano de Seguro (IESS),
Ecuador’s Social Security department.The press dubbed the huge theft “El Robo del Siglo” (“The Theft of the
Century”), and a large reward was offered in return for information leading to
the discovery of the perpetrators.One
of Mr. A’s friends, Mr. Z, had some contacts in the town where the theft had
taken place, and they obtained information about the perpetrators of the
crime.Mr. A, Mr. Z and two other
friends (Mr. X and Mr. Y) promptly went to the National Police and the IESS to
report what they had learned.

About a month later, the four men
began to receive anonymous threats over the phone and by mail.Mr. A received three such phone calls.He was told that he would be killed because
he had given information about the theft to the police.

In March 1996, acting on the
information provided by Mr. A and his friends, the police arrested a number of
suspects and charged them with participation in the theft.The suspects included a police officer and a
well-known gang leader (who was later released).Two other police officers were implicated but
never indicted.Following the arrests,
Mr. X was attacked by unknown assailants, stabbed repeatedly with a machete, and
left for dead.He was found and taken to
the hospital.Upon Mr. X’s recovery, he
fled Ecuador and went to Colombia; Mr. A has not heard from him since.

After this incident, Mr. A and his
other friends went into hiding.Mr. Z
eventually left for Belgium to seek asylum.Mr. A and Mr. Y hid in the home of a relative, Mr. W.They soon began to receive threatening notes
and phone calls.They were afraid to
report anything to the police because police officers were involved in the
theft.After a few months, Mr. A and Mr.
Y hid in another home located in a remote area.Members of Mr. W’s family were targeted for helping the two men; one
woman was attacked by three men while bringing food to the men in hiding.After that attack, Mr. A, Mr. Y and Mr. W
sought assistance from the Comision
Ecumenica de Derechos Humanos (CEDHU), a human rights organization.They were advised to leave Ecuador.The CEDHU obtained visas for the three men
and made arrangements for them to travel to England to seek asylum.

Mr. A and his two friends left
Ecuador in mid-1997 with legitimate travel documents and British tourist
visas.Although their destination was
London, their flight had a stopover in Miami, Florida.Their flight from Quito had been delayed, and
they missed the connecting flight.While
the three men waited in the lounge for the next plane, Mr. A and Mr. W were
summoned over the intercom to an immigration office where they were questioned
about their travel plans.Mr. A
explained that he and Mr. W were on their way to London to apply for
asylum.An immigration officer told Mr.
A that he did not believe that Mr. A had an asylum case and accused Mr. A of
lying.The officer inspected the two
Ecuadorans’ documents.While Mr. A and
Mr. W were being questioned, their plane departed.Mr. Y, who had not been summoned, left on
that flight.He has applied for asylum
in the United Kingdom, and his case is under review.

Eventually, Mr. A and Mr. W were
told that they would be allowed to continue on to London.There were no other flights scheduled that
day, so they slept in chairs at the airport, under surveillance.The next morning they were escorted aboard a
flight to London.

In London, Mr. A and Mr. W were met
by British immigration officials and they requested asylum.A British immigration officer examined their
passports.Both passports had been
stamped TWOV (Transit Without Visa)[24] by the INS
in the United States.The immigration
officer explained that new laws in England prevented Mr. A and Mr. W from
applying for asylum because the TWOV stamp indicated that they had made an entry
in another country where they should have sought asylum.The two men were told that they would be sent
back to the United States where they could apply for asylum.They were each given a document, Notification to Third Country Authority,
which stated that the bearer had applied for asylum in the United Kingdom and
his claim had “been refused without substantive consideration because there is a
safe third country” to which he could be sent.They were told to present the document upon arrival and were assured that
they would not be deported from the United States.

That same day, Mr. A and Mr. W were
escorted onto a flight bound for John F. Kennedy International Airport in New
York.When they arrived, they were taken
directly to an immigration office at the airport.Mr. A told an immigration officer that he
wanted to apply for asylum because he was in danger in Ecuador.He showed the officer the British immigration
document regarding their applications for asylum, but he was told: “We have a
different policy here.”Mr. A was
concerned and upset at the possibility of being returned to Ecuador.He said that he wished to apply for asylum in
the United States, as the British officials had told him he would be able to do
so, but he was simply ordered to sit down.The two men were not allowed to make a telephone call.An immigration officer informed Mr. A and Mr.
W that they were to be returned to Ecuador the next day.

The two men spent the night under
guard at a nearby hotel; Mr. A was given no food, was not allowed to bathe and
was handcuffed to a table next to the bed for the entire night.The next morning Mr. A and Mr. W were
escorted aboard a flight to Ecuador.During a stopover in Miami, Mr. A explained his situation to some
Spanish-speakers; they gave him money and he placed a call to CEDHU in
Ecuador.That organization was able to
make calls on their behalf to UNHCR in the United States, but was unable to
prevent their return to Ecuador.Based
on what they had been told in New York, the two men did not seek asylum while in
Miami because they believed they were not eligible.They were returned to Ecuador.After his return, Mr. A fled once again.According to the latest information received
by the Study, Mr. A has pursued a refugee status claim in a European country.[25]

As an interesting postscript to
this case, it should be noted that one court in the United Kingdom has addressed
the issue of whether the United States is a safe third country, and has decided
that it is not.This decision was
rendered in the case ofanother
Ecuadoran asylum seeker, Mr. Juan Carlos Paredes Naranjo,[26] who was
summarily removed from the United States under similar circumstances to the
applicants in the case study described above.

Mr. Paredes Naranjo transited
through Miami before he arrived in the U.K. and requested asylum.He was not permitted to apply in the U.K.,
but pursuant to the safe third country principle was returned to the United
States to seek asylum.When he arrived
in Miami and expressed his desire to apply for asylum, he was told that he could
not do so because he had already applied in the U.K.He was immediately put on a flight to
Ecuador.The U.K. court ruled that under
these circumstances it did not consider the U.S. to be a safe third country as
to Mr. Paredes Naranjo because it had sent “him to another country or territory
[i.e. Ecuador] other than in accordance with the [Refugee] Convention.[27]

Non-Asylum Seekers

Although it has not been its main
focus, the Expedited Removal Study has also reported on the application of
expedited removal to non-asylum seekers, including citizens and those in
possession of facially valid non-immigrant visas.

On June 10, 2000, Sharon McKnight,
a United States citizen, arrived at New York's John F. Kennedy Airport on a
flight from Jamaica.Ms. McKnight, who
had been in Jamaica for months to visit a sick grandfather, was born in New York
in 1965.She was referred to secondary
inspection because INS officials thought her passport was fake.Ms. McKnight, who is said to have the mental
capacity of a five year old, was handcuffed and left overnight in a room at the
airport with her legs shackled to a chair.

Ms. McKnight's family members, who
were very concerned about her traveling by herself, were at the airport to greet
and accompany her.They became concerned
when she did not appear for two hours, and learned of her detention after making
inquiries.They produced a birth
certificate, but INS officials deemed that to be fake as well.Family members stayed at the airport until
the next morning,pleading for her
release, but Ms. McKnight was returned to Jamaica on a morning flight. Upon her
arrival there, she was able to find her way to the home of a relative after
baggage porters at the airport donated her bus fare.

The INS asserted that the
photograph in Ms. McKnight's passport had been replaced. .An INS assistant area port director told a
reporter: "Obviously, we would not send a U.S. citizen back under any
circumstances."[29]An INS public affairs officer later said
that McKnight had told inspectors that she was born in Jamaica, was coming to
the U.S. to work and that her passport had come from a relative."Based on all the evidence they had, the
inspectors at Kennedy Airport made the reasonable decision that she was not
admissible to the United States," he said.[30]Ms. McKnight's mother, Eunice Benloss-Harris,
said: "They were asking her a lot of questions she cannot answer. She can't even
read or write. This is a disgrace."[31] .

Ms. McKnight returned to the U.S.
on June 18, with the assistance of New York Representative Michael Forbes, after
her status as a U.S. citizen was confirmed in a meeting with the U.S. Consul
General in Jamaica and reviewed by State Department officials in Washington,
D.C.INS officials met McKnight at the
airport as she disembarked, and apologized."We believe the individual is a U.S. citizen," Mark Zorn, an INS
spokesman, told a reporter."We
personally regret the circumstance that led to this situation and any harm this
situation unduly caused the individual and the family."[32]At an airport news conference, McKnight
stated: "They treated me like an animal .... I will have nightmares all my
life."[33]Id.

Mr. G.P.,a Venezuelan national, was a long-term
employee of F Corporation, a multinational corporation doing business in the
U.S. and several other countries, and served as F’s District Manager of Sales at
F’s Miami, Florida offices.Mr. G.P.
obtained an L-1A visa, which permits certain non-U.S. citizen employees of
multinational corporations to enter and temporarily stay in the United States as
intracompany transferees.Between March
1996, and July 1996, Mr. G.P. traveled between Venezuela and Miami on numerous
occasions without incident.In July,
1996, Mr. G.P.’s inspection was deferred.The immigration officer conducting the deferred inspection concluded that
Mr. G.P.’s documents were proper and that he should be admitted.Thereafter, Mr. G.P. made several entries
into the United States without incident.

On June 15, 1997, Mr. G.P. arrived
at Miami International airport and presented the same documents he had presented
in the past—a valid Venezuelan passport with an unexpired L-1A visa.However, this time, Mr. G.P. was questioned
by immigration officials, detained at the airport overnight, and then returned
to Venezuela the next morning.He was
issued an expedited removal order, as he was deemed to have an immigrant
intent.Under the order, Mr. G.P. would
be barred from entering the U.S. for five years.

The immigration officer’s denial of
admission on the basis of Mr. G.P.’s immigrant intent was clearly
erroneous.Although the L-1A visa is a
non-immigrant visa, it permits dual intent; i.e., it explicitly allows the
individual to qualify for the visa even though he may have immigrant intent.

F Corporation filed a complaint
against the INS and the Attorney General to the Miami U.S. District Court,
alleging, among other things,that the
expedited removal order issued by the defendants violated the immigration
stature and relevant regulations.

After spending over $50,000 in
attorney fees, F Corporation reached a settlement with INS whereby INS re-issued
Mr. G.P. a valid visa and canceled the order of expediting removal against
him.In addition, INS agreed that any
computer-generated advisories concerning Mr. G.P.’s previous visa cancellations
would be removed from its databases.

22.The General Accounting
Office’s Studies of Expedited Removal

Congress has twice directed the
General Accounting Office (GAO) to carry out evaluations of the expedited
removal process.Neither of its studies
have adequately answered questions or alleviated concerns regarding improper or
erroneous decision-making in the expedited removal process.

Congress’ first request for a GAO
study was included in IIRAIRA itself, and directed the GAO to determine, among
other issues,“the effectiveness of
such procedures in processing asylum claims by undocumented aliens who assert a
fear of persecution, including the accuracy of credible fear determinations.”[35]

The GAO’s March 1998 report,[36]produced in response to the congressional
request, principally examined INS management controls over the expedited removal
process, reported on a range of INS expedited removal statistics, and compared
the expedited removal process to previously existing exclusion procedures.The GAO declined to evaluate the accuracy of
credible fear determinations, stating that it did not possess the legal
expertise to carry out such an assessment.

The GAO also declined to engage in
a meaningful amount of on-site observation which would have allowed it to assess
INS compliance with controlling laws and policies, as well as to evaluate
qualitative aspects of the expedited removal process, such as the availability
and quality of translation.

In the fall of 1998 Congress
requested a second GAO study; this request was included in the International
Religious Freedom Act of 1998 (IRFA), and directed the GAO to answer four
specific questions regarding expedited removal:

The four questions addressed all
phases of the expedited removal process, and demonstrated a concern about
possible INS misconduct, as well as the potential for erroneous
decision-making.The first and second
questions focused on the implementation of expedited removal at the ports of
entry where immigration officers make decisions whether to refer asylum seekers
to credible fear interviews, and, as question one itself reflects, where the
opportunity exists for the officers to pressure asylum seekers to withdraw their
requests for admission, rather than to pursue their claims.The third question constituted an inquiry
into all phases of the expedited removal process, from ports of entry, through
asylum officer and immigration judge decision-making on credible fear, and asked
whether the process as an integrated whole is likely to render incorrect
decisions which could result in the return of asylum seekers to
persecution.The fourth question focused
specifically on detention issues, and asked whether asylum seekers who qualify
for release nonetheless remain in detention, and whether persons who are
detained are held in suitable conditions.

Prior to embarking on its study,
GAO apprised the relevant congressional committees it would not attempt to
directly answer the questions set forth by Congress in IRFA because it did not
have the legal expertise, feasible methodology or resources to do so.In an effort to be what GAO has characterized
as “reasonably responsive” to the questions, GAO proposed to the congressional
committees an approach which focused primarily on INS management controls over
the expedited removal process. The GAO’s proposal also included an analysis of
certain statistics on expedited removal and detention, as well as an evaluation
of specified aspects of detention.

The GAO released its second report
on expedited removal in September 2000.[37]Nothwithstanding its intention to be
“reasonably responsive” to the questions posed by Congress, its report leaves
all four questions largely unanswered. [38]Nonetheless, the GAO did report on a number
of specific aspects of expedited removal which heighten existing concerns
regarding expedited removal.The GAO’s
findings included the following:

·In a
random sample of fiscal year 1999 expedited removal files, in 2% of the cases, a
fear was expressed but there was no referral to a credible fear interview.If this random sample is representative, as
many as 900 persons in fiscal year 1999 may not have been referred despite
expressing a fear.A breakdown by port
indicates a failure to refer rate at JFK which could be as high as 6%.

·A random
sample of withdrawal associated with three specific ports of entry indicated
that a significant percentage of persons (as high as 21%) were not asked the
“three fear questions” which are part of required procedure to assist in the
identification of asylum seekers.

·A failure
to establish nexus between the persecution and one of the five statutory grounds
(race, religion, nationality, political opinion or membership in a particular
social group) was the basis for denial in 44 of the 45 cases the GAO examined in
which there was an adverse credible fear determination.Nexus determinations can involve highly
complicated factual and legal issues, and the credible fear interview, which is
not intended to be a full asylum hearing, may not be an inappropriate venue for
making such complex decisions.

·There is a
higher likelihood of a negative credible fear determination at some asylum
offices than at others, which raises the question as to whether adjudication
standards are applied uniformly.

·District
directors do not appear to be consistently applying INS policy and parole
criteria, which may result in non-uniform parole decisions in the cases of
asylum seekers.

·Conditions
varied in the detention facilities, as well as at ports of entry, resulting in
asylum seekers receiving widely disparate treatment depending solely on the
location of their detention and the degree of a particular facility’s compliance
with standards. In violation of INS, American Correctional Association (ACA) and
United Nations High Commissioner for Refugees (UNHCR), detained asylum seekers
are not segregated from the criminal population.

VI.Conclusion

April 2001 marked four years since
the implementation of expedited removal.The number of annual expedited removals may well be approaching 100,000,
and if past trends are any indication, 99% of those individuals are removed
without any further process.Researchers, refugee advocates, and the media have all reported on a
disquieting number of cases involvingasylum seekers and non-asylum seekers alike who have not been processed
in accordance with the law.In some
instances, the reported cases have indicated a failure of protection to asylum
seekers even where there has been compliance with the law,[39] which
raises questions as to whether the procedures themselves are adequate.Congress has reasons for serious concerns as
to whether its objectives ofdeterring
fraud while protecting bona fide refugees, and other individuals legitimately
seeking admission to the U.S. are being met.

an applicant for admission coming or attempting to come
into the United States at a port‑of‑entry, or an alien seeking transit through
the United States at a port‑of‑entry, or an alien interdicted in international
or United States waters and brought into the United States by any means, whether
or not to a designated port‑of‑entry, and regardless of the means of
transport.

[7]An applicant
may consult with persons of his or her choice prior to IJ review of the credible
fear determination.INA §
235(b)(1)(B)(iv); 8 C.F.R. § 208.30(b).However, immigration judges have the discretion as to whether consultants
may be present at this review.If a
consultant is allowed to be present, nothing entitles him or her to make an
opening statement, call and question witnesses, cross examine, object to written
evidence, or make a closing argument.Executive Office for Immigration Review, Interim Operating Policy and
Procedure Memorandum 97-3: Procedures for Credible Fear and Claimed Status
Reviews, at 4 (Mar. 25, 1997).

[11]Parole may be
granted pursuant tor 8 C.F.R. § 212.5 on a case by case basis for urgent
humanitarian reasons or significant public benefit, if such persons do not
provide a security risk or a risk of absconding.This is a discretionary grant; the INS has
instructed as follows:

Parole is a viable option and should be considered for
aliens who meet the credible fear standard, can establish identity and community
ties, and are not subject to any possible bars to asylum involving violence or
misconduct; for example, the applicant is an aggravated felon or a
persecutor.

[13] The statistics herein are drawn from The Expedited Removal Study, Report on the
First Three Years of Implementation of Expedited Removal (May
2000).

[14] In this time period 189,177 persons were removed
pursuant to expedited removal.

[15] In Fiscal Year (FY) 1998 expedited removal accounted
for 44.9% of all removals from the U.S., in FY 1999 it increased approximately
6%, accounting for 50.3% of the total removals for that year.

The INA also permits the Attorney General to apply
expedited removal to persons who enter the United States without inspection and
cannot establish that they have been physically present in the U.S. continuously
for the two-year period immediately prior to the date of the determination of
inadmissibility.The Attorney General
has thus far declined to apply expedited removal to all persons falling under
this category, but could decide to do so, which could significantly increase the
numbers of persons subject to the process.

[16] The case was reported in The Expedited Removal Study, Report on the
First Three Years of Implementation of Expedited Removal, at 71 (May
2000).

[18]Altogether,
between 1988 and 1998, Mr. A was arrested more than 40 times by government
forces.

[19]Medical records
reflect that Mr. A was “alert,” “cooperative” and “in handcuffs.”Mr. A is recorded as denying that he had any
hallucinations or delusions, or being suicidal or homicidal; Mr. A explained
that his actions were in response to INS treatment at the
airport.

[20] The case was reportedin The Expedited Removal Study,
Report on the First Three Years of Implementation of Expedited Removal,
at 78 (May 2000).

[21]U.S. State Department, Bureau of Democracy,
Human Rights, and Labor, 1999 Country Reports on Human Rights Practices
(Sept. 25, 1999).Islam is the official
state religion of Egypt.Members of the
Coptic Orthodox Church make up approximately 10% of the population, or more than
6 million persons.Id.While the State Department report states that, “[f]or the most part,
members of the non‑Muslim minority worship without harassment[,]” several
examples of discrimination against Christians are cited and detailed.The report notes that Christians who
proselytize have been arrested, that Muslim women are prohibited from marrying
Christian men, and that “[s]ome Christians complained that the Government is lax
in protecting Christian lives and property.”The report also mentions the continued application of an 1856 decree from
the Ottoman era requiring non‑Muslims to obtain presidential permission to build
or repair places of worship, and an ongoing investigation into police torture of
mostly Christian detainees during a murder investigation in a largely Coptic
village in 1998.Id.

[22]The interview
was conducted in English, in which Mr. C is near
fluent.

[23] The case was reported in The Expedited Removal Study, Report on the
Second Year of Implementation of Expedited Removal, p. 46 (May
1999).

[24] The Transit Without Visa (TWOV) program provides for a
waiver of visa requirements for people in transit through the United
States.See INA § 212(d)(4)(c); 8 C.F.R. §
214.2(c)(1).Persons at a port of entry
are eligible if (a) they are admissible under the immigration laws; (b) they
have confirmed reservations to another country; and (c) they will continue their
journey on the same connecting line within eight hours of their arrival or on
the first available transport.

[25]The country is
known to the Study but omitted due to concerns over
confidentiality.

[38] For a critique of the General Accounting Office’s
second report see, The Expedited Removal
Study, Evaluation of the General Accounting Office’s Second Report on Expedited
Removal (October 2000).

[39]For example,
The New York Times reported on the case of an Albanian woman asylum seeker
whofled Albania after being gang-raped by masked, armed men who were looking for
her husband.Dugger, In New Deportation Process, No Time, or Room
for Error, The New York
Times, Sept. 20, 1997.The woman
was too traumatized and humiliated to mention the rape at her credible fear
interview, which was conducted through a male Albanian interpreter.She was found not to have a credible fear,
and it was only during the immigration judge review of the adverse credible fear
decision that she managed to finally mention the rape.The immigration judge found her not
believable because she had not previously mentioned the rape.She was deported back to Albania, where she
went into hiding.Due to the efforts of
advocates in the United States, the INS finally agreed to return her to the
United States and permit her to apply for asylum.Ultimately she was granted asylum.This case is discussed in detail in Lawyers
Committee for Human Rights, Is This
America? The Denial of Due Process to Asylum Seekers in the United States the
Lawyer Committee for Human Rights, p.55(October 2000)